Two and a Half Years Later, DOJ Forced to “Confirm or Deny” Existence of Memo Justifying Drone Assassinations of Americans

“The Office of Legal Counsel neither confirms nor denies the existence of the document described in to (sic) your request, as the very fact of the existence or non existence of such records is itself classified.”

Almost two and a half years after the Department of Justice Office of Legal Counsel told the National Security Archive that it “neither confirms nor denies the existence of” the memorandum authorizing the lethal targeting of Anwar al-Awlaki, the Second Circuit Court of Appeals has unanimously rejected DOJ claims and ordered the agency to review the memo for release to New York Times and the American Civil Liberties Union.

The National Security Archive joined an amicus brief drafted by the Electronic Privacy Information Center in support of TheTimes and ACLU.

In January 2013, Federal Judge Colleen McMahon initially denied the release of this memo, but bemoaned the “the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.”

“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” she wrote.

This Court ruling overturning McMahon’s decision included two key passages that will impact future Freedom of Information Act litigation. The Court struck a blow to the Department of Justice claim that any Office of Legal Counsel opinion can be withheld under the b(5) “inter-agency or intra-agency” communications exemption. (This exemption is sometimes called the “withhold it because you want to” exemption.)

In another important ongoing lawsuit related to the Office of Legal Counsel, the Center for Ethics and Responsibility in Washington is suing the Department of Justice to make all of its OLC opinions available. CREW is using an underused provision of the FOIA that requires all executive branch agencies to make available to the public, “final opinions made in the adjudication of cases, and statements of policy and interpretation the agency has adopted.” OLC opinions, as CREW’s Anne Weismann explains, fit squarely within both of these categories.

Later in its decision, the Second Circuit court struck at the government’s ability to claim the “Glomar” neither confirm nor deny response, noting that some aspects of the current standard a plaintiff needs to meet to beat a Glomar argument “mad[e] little sense.” The opinion also noted that a “rigid application” of the requirement to identify an “official” disclosure in order to beat a government Glomar claim “may not be warranted in view of its questionable provenance.”

Despite this strike at the current Glomar standard, the Court did note that The Times and ACLU did meet the rigorous interpretation of it. This was largely because of multiple public comments by Attorney General Holder and CIA Director Brennan on target killing of Americans, and the DOJ’s official release –after a leak– of a “white paper” on drone strike authority making many of the same arguments in the OLC memo.

“A rigid application of it may not be warranted in view of its questionable provenance.”

The Court did redact many portions of this opinion at the DOJ’s request to “preserve its opportunities for further appellate review.” The Court wrote that “in the event that our ruling…is not altered in any further appellate review, an unredacted version of this opinion, together with a redacted version of the OLC memorandum, will be filed.” The memorandum will be redacted on b(1) national security and b(3) CIA Act grounds; not the b(5) deliberative process exemption.

The Appeals Court has issued a strong decision that will make it easier for FOIA requesters to fight Glomar and b(5) denials; it will also be more difficult for the Department of Justice to withhold OLC opinions.

Still, it is a bittersweet victory. The Obama administration had the opportunity to release this important binding legal justification itself –two and a half years ago. Instead, leaks, and ultimately the Second Circuit Court filled the void between the Obama administration’s Open Government pledges and its Secret Government reality.